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Monday, January 09, 2012

The Indiana Supreme Court wasted no time in agreeing to hear an emergency, direct appeal of a Marion Superior Court judge's order allowing IBM to depose Gov. Mitch Daniels in its heated litigation with the state's Family & Social Services Administration over the cancellation of its contract to privatize the state's welfare services. An expedited briefing schedule will require the state to file its brief within ten days, followed by a reply brief from IBM within ten days and the state's reply brief to IBM's brief within four days thereafter. According to the Order authored by Chief Justice Randall Shepard and signed by three of the four other justices, a separate order will schedule the date for an oral argument in the case.

Interestingly, the Attorney General's office and Secretary of State Charlie White's attorney are not requesting an expedited, direct appeal to the Supreme Court of Marion County Circuit Court Judge Louis Rosenberg's final order overturning a unanimous decision in White's favor and ordering White removed from office and Vop Osili, the winner of just 38% of the 2010 general election vote installed to that constitutional office. Rosenberg's order removing a sitting statewide constitutional officer in this fashion is unprecedented in Indiana history and would seem to be the type of decision requiring an emergency, direct appeal to the state's high court more than hearing an interlocutory order requiring the governor to be deposed in a civil lawsuit. Rosenberg stayed his order while the case is appealed.

As a consequence of no request being filed by the Attorney General or White's attorney for an emergency direct appeal, White will face trial at the end of this month on seven felony charges based on what I believe is an erroneous assumption by the special prosecutor that White was illegally registered to vote when he ran for secretary of state. It could take months for the decision to work its way through the appellate process. Decades-old Supreme Court precedent is on White's side in the case, and his prospects in his criminal case would no doubt benefit from a favorable ruling from the state's high court if it rules in his favor. By not seeking a direct appeal, White's attorneys have guaranteed that he will face trial on multiple criminal charges without the issue of his legitimacy to hold the office being cleared up. If found guilty of any of the felony counts, White will be forced to resign from office. The appeal of election contest will then become meaningless to White. It is absolutely astonishing that his attorneys have foregone that valuable right of direct appeal. The Supreme Court justices must be scratching their heads wondering what White's attorneys are thinking.

UPDATE: Attorneys for the Democratic Party, who had assumed White and the Attorney General's office would file a motion with the Supreme Court to transfer for direct appeal, on their own initiative filed a motion last Friday I'm told to appeal the case directly to the Supreme Court. Charlie White's attorney, David Brooks, did not join in that motion; however, the Attorney General yesterday separately filed a motion concurring with the Democratic Party's motion to transfer the case to the Supreme Court.

See the motion filed by the Attorney General's office here. A press release issued by the AG's office today reads:

The Indiana Attorney General's Office has asked the Indiana Supreme Court to directly hear the state Recount Commission's appeal regarding a statewide candidate's ballot eligibility, due to the importance of the case.

The Marion County Circuit Court on December 22 had reversed the Recount Commission's ruling on a Secretary of State candidate's 2010 ballot eligibility, but stayed that ruling pending appeal by the commission and other litigants. The Attorney General's Office, which represents the Recount Commission, filed a motion Monday seeking transfer directly to the Indiana Supreme Court, the state's highest court.

"It is in the public's interest that this lingering question of whether a statewide candidate was eligible for the ballot be decided with certainty and finality. In this rare circumstance, my office has asked the Indiana Supreme Court to take this case directly. In our role defending the legal authority of state administrative boards, we will vigorously contend the Recount Commission's unanimous decision was correct and ought not to have been reversed," Indiana Attorney General Greg Zoeller said.

The commission made a unanimous finding concerning candidate Charlie White's eligibility for the 2010 ballot as a candidate for Secretary of State, but the trial court reversed that decision, prompting the appeal. In the ongoing litigation, the Attorney General's Office represents the Indiana Recount Commission only and does not represent candidate White. The commission's verified motion to transfer jurisdiction of appeal before consideration by the Indiana Court of Appeals was filed Monday in the Indiana Supreme Court, and an appeal brief will be filed at a later date. The Supreme Court has not yet decided whether to take the case.

UPDATED ANALYSIS: As you all know, Gov. Mitch Daniels has repeatedly called on Charlie White to resign. Daniels does this knowing he has committed worse in the way of vote fraud than White. Daniels is registered to vote at the Governor's residence on North Meridian Street where he does not live; however, the Indiana Constitution requires the governor to live within Marion County. Although Daniels formerly lived in Marion County, shortly after he became governor he built a multi-million dollar home in a gated Carmel community where he now resides. Indiana State Police transport Daniels to and from his Carmel residence on a daily basis. When Republicans tried to disqualify Evan Bayh from running for governor because he had not resided in Indiana for the 5-year residency requirement imposed by the constitution, Democrats launched an attack against then-Gov. Robert Orr. Although Orr resided at the governor's residence, he registered to vote at his permanent home in Evansville. Democrats charged that Orr had committed vote fraud by casting votes from his Evansville home. Daniels is doing the opposite, claiming to reside at the governor's residence when he in fact resides in Carmel outside Marion County. Those of you who have studied Daniels have figured out that he often bends the rules to suit his own ends. He has the luxury of doing that because the news media eats out of his hand, ignoring his transgressions, unlike White, who they beat over the head for every slip-up no matter how minor.

Daniels is banking on White being found guilty on at least one of the seven felony charges the special prosecutor has brought against him. Daniels wants White tossed from office in a fashion that allows him to appoint one of his cronies as White's successor. As far as Daniels is concerned, he would just as soon not see the election contest case decided until after White's criminal trial later this month. Given the way the AG's office dragged its feet on filing its motion for direct appeal (only after the Democrats filed their own motion) and the fact that White's attorney, David Brooks, a close ally of Daniels who didn't even file a motion to transfer White's appeal directly to the Supreme Court on an emergency, expedited basis, it's quite obvious the establishment is putting their own interests ahead of White's constitutional right to hold the office to which he was legitimately elected.

In the Evan Bayh case, it was Chief Justice Randall Shepard, a Republican appointed by Gov. Orr, who swung the vote of the Court in deciding in favor of Bayh's residency to run for governor in a direct appeal heard on an expedited basis. Shepard would have to move the court to turn the Bayh decision on its head to find in favor of the Democratic Party and overrule the unanimous decision of the Recount Commission in White's favor. It is very likely the Supreme Court will overturn Marion Co. Circuit Court Judge Louis Rosenberg's questionable ruling in which he re-weighed the evidence heard by the Recount Commission and substituted it with his own judgment. If that decision comes after a criminal court found White guilty of no more than one of the criminal charges leveled against him, it would ensure that Daniels' handpicked crony and not White would get to finish out the term. That's the end game for Daniels. It should be plain for all to see. Charlie White was long ago dumped in the garbage can by Daniels and the political establishment.

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